Kara Sears
Indonesia's legal system is a mix of civil law, local customary law, and Dutch law. Before European colonisation in the 16th century, indigenous kingdoms ruled the archipelago independently, each with its own adat or customary laws. Dutch colonial rule for over 300 years left a legacy of Dutch colonial law, which is reflected in the Indonesian Civil Code, Commercial Code, and Criminal Code. Following independence in 1945, Indonesia began to establish its own modern legal system, modifying existing Dutch legal principles and drawing from customary adat laws and Islamic law. Indonesia's legal system is considered a civil law system, with a heavy reliance on statutory laws.
| Characteristics | Values |
|---|---|
| Legal System | Civil law system |
| Basis | Roman-Dutch model |
| Influenced by | Dutch colonial law, local customary law, Islamic law |
| Law Formation | Statutes, bills, ordinances |
| Apex | Constitution (1945) and its amendments |
| Legal Hierarchy | People's Consultative Assembly (MPR) Order, Laws, Government Regulation in Lieu of Laws, Government Regulation, Presidential Regulation, Provincial Regional Regulation, Regency/City Regional Regulation |
| Legal Code | Civil Code (KUHPer), Commerce Code (KUHD) |
| Criminal Code | Differentiated crimes from misdemeanors, now expanded to 624 articles in 2 books: "General Provisions" and "Crime" |
| Regional Influence | Sharia law in Sumatra, Animistic customary law in Sulawesi |
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What You'll Learn
Indonesia's civil law system
Indonesia's legal system is based on a civil law system, intermixed with local customary law and Dutch law. Before European colonisation in the 16th century, indigenous kingdoms ruled the archipelago independently, with their own adat or customary laws (unwritten, traditional rules still observed in Indonesian society). Foreign influences from India, China and the Middle East have impacted these adat laws. For example, the people of Aceh in Sumatra observe their own sharia law, while ethnic groups like the Toraja in Sulawesi follow their animistic customary law.
Following Dutch colonisation, Indonesia's civil code and criminal code were heavily influenced by Dutch colonial law. After independence in 1945, Indonesia began to form its own modern Indonesian law, modifying existing precepts. Dutch legal decisions still maintain some authority in Indonesia through the application of the concordance principle. The three components of adat, Dutch law, and modern Indonesian law coexist in the current legal system of Indonesia.
Principles in Civil Law serve as guidelines in the conduct of civil proceedings in court. These principles are crucial in providing legal protection, ensuring transparency, and ensuring justice for all parties involved in a civil case. The Principle of the Indonesian Rule of Law (Asas Negara Hukum Indonesia) is of utmost importance and closely correlates with the Indonesian judiciary. It is related to other principles such as democracy, family values, balance, independent judiciary, deliberation, and equality before the law. The Principle of Familyhood (Asas Kekeluargaan) is reflected in the efforts for reconciliation undertaken as an integral part of the civil procedure law system.
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Customary law (adat)
Indonesia's legal system is based on a civil law system, intermixed with local customary law or adat, and Dutch law. Adat refers to the unwritten, traditional rules observed in Indonesian society. Before European colonisation in the sixteenth century, indigenous kingdoms ruled the archipelago independently, each with their own adat. Foreign influences from India, China, and the Middle East have impacted the culture and adat laws of Indonesia. For example, the people of Aceh in Sumatra observe their own Sharia law, influenced by Islam, while ethnic groups like the Toraja in Sulawesi follow their animistic customary law.
Adat laws are a set of written, traditional rules still observed in Indonesian society. They involve sets of laws, codes of conduct, and dispute resolution mechanisms. The observance and enforcement of adat laws involve the elder members of society, as well as their collective will and awareness. There is no single, unified adat that applies to all of Indonesian society; each ethnic group has its own set of adat laws. For example, the adat laws observed in the Minang society of the West Sumatran highlands initially ascribed to the worship of ancestors and the Hindu-Buddhist faith. After Islam was adopted, Islamic values were inserted into their adat laws without completely abolishing the existing values.
Adat law is part of Indonesia's legal system and is recognised in the country's criminal code. The government acknowledges 'living laws' or adat in punishing crimes. The recent development of transforming adat law into state regulation through by-laws at the regional level of governments indicates a new paradigm in recognising and protecting adat law.
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Dutch colonial law
Indonesia's legal system is based on a civil law system, influenced by local customary law and Dutch colonial law. Before European colonisation in the 16th century, Indonesia's archipelago was ruled by independent indigenous kingdoms with their own adat or customary laws.
The Dutch presence and subsequent colonisation of Indonesia for over three centuries has left a legacy of Dutch colonial law, largely in the Indonesian civil code and criminal code. The Dutch imported their civil law tradition and code to Indonesia, initially to govern the small population of Dutch colonists and eventually to other parts of the Indonesian population. The Dutch East India Company, which controlled Indonesia for much of its colonial history, sought to exploit the large collection of island kingdoms and empires for resources, especially spices.
During the 18th century, the Dutch United East India Company (VOC) established itself as the dominant economic and political power on Java after the collapse of the Mataram empire. The VOC was nationalised by the Dutch state in 1796, and its possessions in Indonesia were transferred to the Dutch crown in 1800. However, when the French occupied Holland between 1806 and 1815, these possessions were briefly held by the British. After Napoleon's defeat at Waterloo, most parts of Indonesia were returned to Dutch rule.
The Dutch system of rule in Java was both direct and dualistic. Alongside the Dutch hierarchy, there existed an indigenous one that functioned as an intermediary between the Javanese peasants and the European civil service. The Dutch also influenced the Indonesian legal system through the imposition of the Dutch Criminal Code, which heavily restricted adat or customary laws.
Following independence in 1945, Indonesia began to form its own modern Indonesian law, modifying existing precepts. Dutch legal decisions maintain some authority in Indonesia through the application of the concordance principle. The three components of adat, Dutch law, and modern Indonesian law coexist in the current law of Indonesia.
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Modern Indonesian law
Indonesia is considered a civil law system, with a heavy reliance on statutory laws. The Indonesian legal system is a mix of local customary law, known as 'adat', and Dutch colonial law. Before the 16th century and the arrival of European colonial powers, indigenous kingdoms ruled independently, with their own adat laws. These were influenced by other cultures, including those from India, China, and the Middle East.
Following independence in 1945, Indonesia began to form its own modern laws, modifying existing precepts. The Dutch colonial presence in Indonesia for over three centuries has left a legacy of Dutch law, particularly in the civil and criminal codes. Dutch legal decisions still hold some authority in Indonesia, and the three components of adat, Dutch law, and modern Indonesian law coexist in the current legal system.
The Indonesian legal system utilizes the Civil Code, as well as two civil procedural codes: the HIR for Java and Madura, and the RBG for areas outside of these regions. There is also a Commerce Code, used for basic commercial principles. These are all Dutch colonial legal codes, directly adapted from Dutch laws. Other civil law rules may come from newer, more specific Acts and regulations. The Civil Code is divided into four 'Books': Persons, Property, Contracts, and Evidence and Limitations.
Indonesia's modern legal system has seen the country's first steps towards a more democratic process. The country's legislature is the People's Consultative Assembly, which consists of two houses of parliament: the lower house, the House of Representatives, and the upper house. Acts or laws can only be enacted by the DPR with the president's assent. The president, DPR, and DPD can propose a bill of law to be deliberated by the DPR. The DPRDs and regional heads of government can also propose bills, which, if agreed upon, are signed into ordinances and enacted within thirty days.
The Constitutional Court has the authority to conduct judicial reviews over laws and adjudicate whether the President and/or Vice President has violated the law through treason, corruption, or bribery, demonstrating a system of checks and balances. The protection of human rights and the separation of powers indicate Indonesia's adoption of the modern conception of constitutionalism.
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Islamic law (sharia)
Indonesia's legal system is primarily based on civil law, with influences from local customary law and Dutch colonial law. The country's civil code and criminal code still bear the imprint of Dutch colonial rule, which lasted for over three centuries. After gaining independence in 1945, Indonesia began shaping its own modern legal framework, modifying and adapting existing laws.
Within this broader civil law system, Indonesia also recognises adat or customary law, which varies across different indigenous groups in the country. One notable example is the application of Islamic law, or Sharia, in the province of Aceh on the island of Sumatra. Aceh, with a population of 5.4 million, is the only province in Indonesia that officially implements Sharia law.
Sharia law in Aceh enforces a strict moral code, with Islamic courts imposing punishments for various "moral offences." These offences include adultery, rape, sexual harassment, sexual relations outside of marriage, homosexuality, illegal gambling, and the sale and consumption of alcohol. The punishments for these crimes can include public caning, with sentences ranging from 10 to 150 lashes.
The implementation of Sharia law in Aceh stands in contrast to the predominantly secular nature of Indonesia, where 87% of the population identifies as Muslim. The Acehnese people, known for their conservatism and piety, have a long historical association with Islam, dating back to the 12th century when trade with Asian, Indian, and Arab traders brought the religion to Southeast Asia.
While Indonesia's legal system primarily operates within a civil law framework, it accommodates the coexistence of diverse legal traditions, including Dutch law, modern Indonesian law, and customary laws like Sharia in specific regions. This legal pluralism reflects the country's complex history and cultural diversity.
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Frequently asked questions
Indonesia is a civil law country.
Indonesia's civil law system is based on the Roman-Dutch model. This is a result of the Dutch colonial occupation of Indonesia for over 300 years, which left a legacy of Dutch colonial law reflected in the Indonesian Civil Code, Commercial Code, and Criminal Code.
Indonesia's legal system also incorporates local customary law, known as adat, which existed before Dutch colonisation, as well as Islamic law (sharia) for Muslims.
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